Berkman Summer Interns 2008

So I’ve been doing quite a lot of reading, as many of you know, on copyright and fair use.

Without getting too exhaustive — see me in person if you want the sledgehammer of facts    — the typicalfair use analysis can be divided into one of two groups.  (1) Is the use(sufficiently) transformative?  and (2)  does the use have a negative economic impact on the original creator / rights holder.

Setting side the second of those two, consider “transformation”.    That’s when we are talking about whether the new use that borrowed and copied changed what it borrowed sufficiently enough to be considered effectively a “new thing”.  That is, was there just some copying going on, or was there substantial repurposing.  Can the copier be accurately described as  a new, even if secondary, creator?

People are all over the spectrum about this.  Some go so far as to say that all but the most radical transformations are  infringing copying.  this seems ot beg th equestion.  If it has been changed so much you can discern no trace of the original, how can you possibly assert there was copying at all, much less defensible copying.

On the other hand, in the same way that “you canot step into the same river twice”  and “no reader reads the same text”  some argue that merely copying and sharing a creative object transforms it into something new.  this is persuasive and fascinating, but I would not recommend trying it woith a judge.  Ha!

But it is this latter idea that intrigues me with respect to education and teaching, which is the focus of the project on which I am working.

I therefore throw this question out for contemplation and discussion.

If a work (not a work written explicitly for classroom use, we’ll leave that aside for now)  is  copied for the purposes of presenting it in a pedagogical context, shouldn’t that alone be sufficient repurposing / recontexualization for a fair use argument?

Doesn’t education ( at least in the humanities)  presume criticism and cultural commentary on the materials being taught?

I’m not even going to get into the public benefit / purpose of copyright in general.

That is to say, it seems to me that  in an educational context, a strong argument can be made for fair use  with respect to almost any use, short, perhaps of wholesale copying of entire novels.

Thoughts?

Adam